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2 States Plan 2-Tier System for Balloting

A registration drive at Phoenix College in Arizona in 2012.Credit
Joshua Lott for The New York Times

PHOENIX — Barred by the Supreme Court from requiring proof of citizenship for federal elections, Arizona is complying — but setting up a separate registration system for local and state elections that will demand such proof.

The state this week joined Kansas in planning for such a two-tiered voting system, which could keep thousands of people from participating in state and local elections, including next year’s critical cycle, when top posts in both states will be on the ballot.

The states are using an opening left in June by the United States Supreme Court when it said that the power of Congress over federal elections was paramount but did not rule on proof of citizenship in state elections. Such proof was required under Arizona’s Proposition 200, which passed in 2004 and is one of the weapons in the border state’s arsenal of laws enacted in its battle against illegal immigration.

The two states are also jointly suing the federal Election Assistance Commission, arguing that it should change the federal voter registration form for their states to include state citizenship requirements. While the agency has previously denied such requests, the justices said the states could try again and seek judicial review of those decisions.

The battle over voting is part of a larger struggle between the two parties. Democrats have sought to make voting easier and to increase participation among minority groups that tend to support them. Republicans have sought to require more proof of citizenship and to increase identification requirements, saying they are fighting potential fraud.

The two-tiered system — deemed costly, cumbersome and prone to confusion by many of its opponents, as well as election officials in both states — threatens to derail an effort by Democrats and their allies to increase voter registration and turnout among Latinos and the poor, part of a push by the party to pick up local offices and seats in the states’ legislatures, where policies have been largely dictated by Republicans in recent years. The states would create separate ballots covering only federal races for voters who do not provide proof of citizenship.

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Kris W. Kobach, the Kansas secretary of state, said a two-tiered system is a “contingency plan” in case the states lose a fight to change the federal registration form.Credit
Joshua Lott for The New York Times

“It’s another veiled attempt at discouraging young voters, low-income voters, Latino voters from entering the electoral process,” said Petra Falcón, executive director of Promise Arizona in Action, one of the groups leading voter-registration efforts here.

On Monday, Mr. Horne instructed county election officials to create separate rolls for voters who signed up using the federal form and those who used the state form, the first step to determining eligibility. In Maricopa County, Arizona’s largest, the exercise turned up 900 people who did not show proof of citizenship, a small fraction of the roughly 1.9 million county residents registered.

Matt Roberts, spokesman for the Arizona secretary of state, Ken Bennett — who, like Mr. Horne, is a Republican — said the small numbers do nothing to lessen the challenge of adding another ballot to a system already full of them, each based on variants like party affiliation, voting precinct, and legislative and Congressional districts.

“We have a hard enough time already to get people to go to the right voting place,” Mr. Roberts said. “The last thing any poll worker wants is to have to tell someone who might be voting for the first time why they can’t vote for governor.” He said Mr. Bennett supports requiring proof of citizenship but wants it for all elections.

Since Congress passed the National Voter Registration Act in 1993, allowing people registering to vote to assert their citizenship simply by checking a box on a federal form, Mississippi and Illinois are the only states to have experimented with dual voting systems. Both of them imposed registration requirements for state and local races that went beyond federal ones.

Those experiments did not last. An Illinois appellate court ruled the state’s system unconstitutional because it was too restrictive. Mississippi ran up against a provision of the Voting Rights Act, requiring it and eight other states, including Arizona, to get federal approval before changing election laws. That provision, at the heart of the civil rights era legislation, was struck down by the Supreme Court in June.

Advocates for easier voting said they feared Arizona and Kansas could propel other states toward two-tiered systems. “We really hope that is not the start of a trend,” said Dale Ho, director of the voting rights project at the American Civil Liberties Union.

With its registration act, Congress meant to increase access to the electoral process for citizens who needed help signing up to vote, like the poor and the disabled, which is why the federal form became available in offices that offered services to certain people receiving public benefits.

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During a registration drive in 2012, a student at Phoenix College in Arizona registered to vote.Credit
Joshua Lott for The New York Times

In Kansas, part of the strategy among Democratic-aligned groups had been to use the federal registration form, figuring it would keep citizens from having to abide by the state form’s requirements imposed this year, like submitting any of a number of documents — birth certificate, passport, naturalization papers — to prove citizenship.

Now, for state elections, people who fail to provide the proper documentation will have their voter registrations suspended until they do; so far, more than 18,000 have been suspended, or about one-third of all voters registered this year in Kansas.

The Kansas secretary of state, Kris W. Kobach, a former chairman of the state’s Republican Party, said he decided to suspend the registrations — not revoke them altogether — so people could still fill out forms at voter registration drives and send the documents later. Ultimately, he said, the two-tiered system is a “contingency plan” in case Kansas and Arizona do not prevail against the federal Election Assistance Commission in court.

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Mr. Ho said such dual voting methods create “separate and unequal classes of voters, and there’s no rational justification for that.”

For county officials in charge of elections, they impose a financial challenge and a logistical nightmare.

Jamie Shew, a Democrat and the clerk in Douglas County, Kansas’ fifth largest, said his office already offers 125 different types of ballots for all local elections, but would have to provide double that number if it were to offer a separate ballot for federal races only, at 34 cents apiece. In Phoenix, the Maricopa County recorder, Helen Purcell, a Republican, estimates the cost of creating the new ballots to be $250,000, or roughly 5 percent of her office’s entire budget for the current fiscal year.

Workers would also have to be hired and trained to distribute the ballots and field questions from voters, they said.

Ms. Falcón, of Promise Arizona, said the push last year was to capitalize on opposition to the state’s immigration law and to the sheriff in Maricopa County, Joe Arpaio, who has come to symbolize Arizona’s strict stance on immigration enforcement. The idea was to get young people and naturalized citizens to register, telling them that the way to change the political landscape was “from the bottom up,” she said.

“It’s hard enough already to get people to register,” she said. “This dual-voting system is only going to add to the confusion on Election Day.”

Fernanda Santos reported from Phoenix, and John Eligon from Kansas City, Mo.

A version of this article appears in print on October 12, 2013, on Page A1 of the New York edition with the headline: 2 States Plan 2-Tier System For Balloting. Order Reprints|Today's Paper|Subscribe